023-SLLR-SLLR-1992-V-1-SRI-LANKA-STATE-PLANTATIONS-CORPORATION-AND-ANOTHER-v.THE-NATIONAL-UNIO.pdf
SRI LANKA STATE PLANTATIONS CORPORATIONAND ANOTHERv.
THE NATIONAL UNION OF WORKERS
COURT OF APPEALGUNASEKERA, J.
C.A. NO. 975/83LT 10/4861/83
13 NOVEMBER, 1990, 11 DECEMBER, 1990 & 21 FEBRUARY, 1991
Industrial Law – Just and equitable order – Suspension – Jurisdiction of LabourTribunal under Industrial Disputes Act, section 31(B) 1.
Held:
A Labour Tribunal has no power to ignore the weight of evidence or the effect ofcross-examination on the vague and insubstantial ground that it would beinequitable to one party to do so. There is no equity about a fact and the Tribunalmust decide on all questions of fact solely on the facts of the particular case,solely on the evidence and apart from extraneous considerations. In his approachto the evidence the President must act judicially. It is only after he has soascertained the facts that he enters upon the next stage of his function to makean order that is fair and equitable having regard to the facts so found.
The charge against the workman was that he was running a boutique in a lineroom meant for residence. He was suspended from work until he closed down theboutique. The workman had failed to establish that he had obtained the previousSuperintendent’s permission to run the boutique. The workman had failed to heedseveral warnings to close down the boutique. The order of suspension was in ihecircumstances not a constructive termination. Hence the application to theLabour Tribunal was not maintainable and failed for want of jurisdiction.
Cases referred to:
Ceylon Transport Board v. Ceylon Transport Workers' Union 71 NLR 158,163.
Ceylon Workers' Congress v. JEDB and Another (1987) 2 Sri LR 73.
APPEAL from order of President, Labour Tribunal.
S. M. Fernando with A. M. Gunawardena and N. H. Hapuaratchchifor appellant.
P. K. S. Sureschandra for respondent.
Cur adv vult.
5th April, 1991.
GUNASEKERA, J.
An application was made by the applicant respondent Trade Unionthat the services of its member S. Sebastian who was employed inSt. Heliers State Plantation, Watawala was terminated on 18.6.1983and claimed reinstatement with back wages by way of relief.
The employer appellants in their answer denied the termination ofthe services of the workman on whose behalf the application hadbeen made and averred that since the workman was using theresidence given to him for purposes other than residential purposesthat his services were suspended until he commences to use theresidence solely for residential purpose and moved that theapplication be dismissed.
After inquiry the learned President by his order dated 18.11.1983held that the services of the workman had been terminated by theemployer and ordered that he be reinstated with the payment of asum of Rs. 2400/- as back wages.
It is against this order that the employer respondents haveappealed.
Mr. S. Fernando Learned Counsel for the respondent appellantsubmitted that the Learned President erred in law in holding thatthere has been a termination of the services of the workman onwhose behalf the application was made. He contended that theprincipal issue for determination by the Learned President waswhether there was a termination of the service of the workmanconcerned by the employer as alleged in the application or whetherthere was only a suspension of his services as alleged by therespondent appellants and that in answering the issue the LearnedPresident has totally failed to consider the evidence led before him.Learned Counsel submitted that the Labour Tribunal is vested withjurisdiction under section 31 (B)1 of the Industrial Disputes Act onlyand only if there is a termination of the services of a workman by theemployer.
The Learned Counsel for the appellant drew the attention of theCourt to the evidence of the Superintendent R. J. Depp at page 31and 32 of the Brief where he has specifically stated that “I have notterminated the services of the workman on any day" and “Isuspended his services as the workman was carrying on a boutiquein his line room. If the workman stops running the boutique in his lineroom I am prepared to give him work”.
Learned Counsel contends that this position taken up by therespondent in the evidence of the Superintendent is supported by theevidence of the workman himself when he stated in his evidence atpage 16 as follows:
“The Superintendent told me that I would not be given work solong as I carried on the boutique in the line room. He said thatafter I close down the boutique that he would give me work. TheSuperintendent did not terminate my services. He onlysuspended my services”.
Therefore Learned Counsel submitted that the Learned President’sfinding that there has been a termination of the services of theworkman is erroneous and that on the evidence of both theSuperintendent and the workman himself that he could not havecome to such a finding. In support of this submission LearnedCounsel relied on the dicta of Tennekoon, J. (as he then was) in thecase of The Ceylon Transport Board v. Ceylon Transport Workers’Union"' where he observed that “section 31(C)1 must not be read asgiving a Labour Tribunal a power to ignore the weight of evidence ofthe effect of cross-examination on the vague and insubstantialground that it would be inequitable to one party to do so. There is noequity about a fact, the Tribunal must decide on all questions of fact“solely on the facts of the particular case, solely on the evidencebefore him and apart from any extraneous considerations". It is in hisapproach to the evidence he must act judicially. In short only after hehas so ascertained the facts that he enters upon the next stage of hisfunction which is to make an order that is fair and equitable havingregard to the facts so found.
Thus I agree with the contention of the Learned Counsel for theappellant that the Tribunal has shut its eyes to the positive evidencein the case in holding that there was a termination of the services ofthe workman.
Learned Counsel for the appellant next submitted that the LearnedPresident has misconstrued the evidence of the workman on whosebehalf the application was made in coming to a finding that theworkman had obtained permission from the previous Superintendentof the estate to run a boutique in his line room for there was no suchevidence in the record. Having examined the evidence of theworkman, his evidence at page 21 under cross-examination was thathe obtained the approval of the previous SuperintendentParameswaran to construct an addition to the line room to be used asa kitchen and therefore I agree with the contention of LearnedCounsel that this finding of the Learned President is unsupported bythe evidence and is erroneous.
Learned Counsel for the appellant also complained that theLearned President has come to a finding that there was aconstructive termination of the services by the worker on 2 grounds.Firstly, that the suspension was indefinite and secondly that thesuspension was for insufficed reasons. On the question of indefinitesuspension Counsel submitted that the evidence of the workmanhimself at page 16 was that he would be given work after he closesdown the boutique and as for the reasons for suspension it was theSuperintendent's evidence that the workman was running a boutiquein the line room meant for residence without authority from themanagement and thus the finding that the workman’s services hasbeen constructively terminated in my view is untenable.
Learned Counsel for the respondent further submitted that theLearned President was in error when he in his order made theobservation that it appears that the Superintendent had all of asudden decided to take steps in 1983 to request the workman toclose down the boutique which he has been running for a long periodof time. He contended that in doing so the Learned President hadfailed to take into account the evidence of the Superintendent thatafter he came to this estate as its Superintendent in November 1981,finding that the workman concerned was running a boutique in hisline room he had warned the workman to close it down several timesfrom May 1982 to June 1983 and has disregarded R1 dated May1983 addressed to the workman on 30.5.1983 referring to theprevious warnings to close the boutique and therefore this findinghas been arrived at without consideration of relevant and positiveevidence. I am inclined to agree with this submission of LearnedCounsel.
Lastly Learned Counsel contended that the employer was justifiedin suspending the services of the worker for failure to carry out alawful order made by the management and relied on the case ofCeylon Workers' Congress v. JEDB and Another™ where a workmancontinued in forcible occupation of a line room in defiance of theorders of the Superintendent to get back to the line room earlieroccupied by him and thereupon the Superintendent suspended hiswork until he vacated the line room forcibly occupied by him. It washeld that the suspension of work did not amount to a constructivetermination.
Thus having regard to the evidence led at the inquiry I am of theview that there was only a suspension of the work of the workmanconcerned, and therefore the application made under Section 31(8)1was not maintainable.
For the reasons stated above I set aside the order of the LearnedPresident dated 18.1.83 and dismiss the application of therespondent Trade Union made on behalf of the workman S. Sebastianto the Labour Tribunal. There will be no costs.
Appeal allowed.